Unifying Principles within Pluralist Tort Adjudication

Abstract A healthy political society values diverse viewpoints and their associated moral theories. Recognizing as much, Jane Stapleton and numerous other tort scholars have concluded that tort law is committed to pluralism as a substantive matter. Their reasoning seems incontrovertible: tort adjudication has always been conducted in terms of incompletely theorized mid-level moral principles such as reasonableness or fairness that can be justified by a plurality of values. Though otherwise valuable, substantive pluralism is problematic in the context of adjudication. If tort law must always be formulated to protect a plurality of competing moral values, it could not justify judicial decision-making in hard cases, nor could it meaningfully protect individual rights or otherwise provide individuals with requisite guidance on how they should behave when pluralist values conflict. Rather than entailing a commitment to pluralism as the substantive rationale for tort law, pluralist adjudication is more plausibly characterized as a dynamic process of constructive interpretation. Litigants have an institutional right to be treated equally under the law. The common law implements this requirement with its characteristic mode of judicial decision-making based on analogical reasoning—treating like cases alike. Analogical reasoning depends on unifying principles for categorizing individual cases, turning pluralist tort adjudication into a process that incrementally develops unifying categorical principles with the potential to converge into a single integrated rationale for tort law.